Cupertino: Open space district files lawsuit against county over Lehigh Cement's EIR

The Midpeninsula Regional Open Space District is filing a lawsuit challenging the environmental impact report for a recently approved reclamation plan for Lehigh Southwest Cement's Permanente Quarry near Cupertino.

The district's lawsuit is against Santa Clara County and the county's board of supervisors over their late-June decision to approve the long-awaited reclamation plan.

"Our deep concerns for the quarry's air and water quality impacts, hazardous materials and related recreational impacts remain unaddressed," district board president Curt Riffle said. "These issues affect us, our visitors and the employees who work and live on our preserve. We have therefore directed staff to seek the assistance of the courts."

In the complaint filed Nov. 29, the open space district states that the EIR failed to analyze and mitigate the project's impacts on air quality, hazardous materials, recreation, groundwater and endangered species.

The cement and rock quarry located in unincorporated Santa Clara County near Cupertino had been working on a reclamation plan with the county's planning office off and on for roughly five years, before the plan was unanimously approved in late June, along with certification of the EIR.

The approved plan amends the current 1985 reclamation plan for surface mining area at the plant and quarry. The area in question covers 1,238 acres of the company's 3,510 acres.

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Over a 20-year period, Lehigh Cement will reclaim land while also mining for limestone. Crushed rock from other mined areas will help fill in the facility's massive quarry pit.

As public meetings carried on throughout the years and spring of 2011, the open space district was among many individuals and organizations that voiced concern during the process. The quarry and cement plant are adjacent to the district's Rancho San Antonio Open Space Preserve, which sees more than 500,000 visitors annually, according to district officials.

"A lawsuit is the very last course of action for us. However, since many issues of concern were not adequately addressed through other channels, we feel we must turn to the courts to help us resolve this matter," said Steve Abbors, general manager of the open space district.

The lawsuit states that the final EIR and reclamation plan lack sufficient analysis of air quality, water quality, biological resources, hazardous materials, baseline conditions and visual impacts. The lawsuit also alleges that the report "fails to recognize or evaluate the potential toxic legacy of the site."

The open space district is concerned that a half-century of munitions and metal manufacturing could have contaminated the area, noting the toxic soil from that era could be disturbed and buried by mining waste, before proper analysis of the contamination was completed.

The district's elected board of directors voted to issue the lawsuit last week. In a separate decision, the board also directed district staff to pursue its own independent air quality monitoring to help the district better understand any pollutants in the air near the preserve.

The reclamation plan's approval process saw dozens of residents and organizations voice their opinions through county-hosted workshops, public hearings, environmental reviews and other public meetings over the past five years. Hearings leading up to the final approval were held May 24 and 31 and June 7. An appeals hearing was held in early July.

The quarry and cement facility's unusual proximity near Cupertino and Los Altos homes consistently makes it a perpetual source of controversy and ire from nearby neighbors. The facility has operated since before World War II, and mining at the site dates back to before the 20th century, long before the city of Cupertino was incorporated.

The facility excavates limestone from an on-site quarry for use in cement manufacturing and produces more than half of the cement used in the Bay Area, according to Lehigh Cement.

Air District petition

Meanwhile, in a completely separate lawsuit, Lehigh Cement announced Nov. 26 that it has filed a lawsuit in Santa Clara County Superior Court against the Bay Area Air Quality Management District and Air District board.

The petition is aiming to hold off on new air quality regulations that would go into effect in September 2013. The new rules were unanimously approved by the Air District in September.

The Air District's new rules--known as Regulation 9, Rule 13--include a strict emissions limit for nitrogen oxides, particulate matter and toxic air contaminants such as mercury, benzene and hydrochloric acid. The rules also include new continuous emissions monitoring, record keeping, reporting and operational requirements, such as dust mitigation measures.

In September, Jack Broadbent, executive officer of the Air District, said the new measures are the "strongest of its kind in the country."

Lehigh's petition is centered on the rule's timetable. The new rules will match or exceed the standards recommended by the U.S. Environmental Protection Agency and set for implementation in 2015. The Air District's rules, however, will have to be met a full two years earlier, in 2013.

If the BAAQMD regulation is allowed to go forward, Lehigh officials argue that their facility would be the only cement facility in the country required to comply virtually two years earlier than other cement plants subject to the federal standards, thus putting Lehigh at a significant competitive disadvantage.

"Attempting to validate the regulation by saying it is applicable to the entire cement industry when we are the only cement manufacturing plant in the District is not only disingenuous, it violates the company's rights," Tim Matz, corporate director of environmental affairs for Lehigh Hanson, said in a company-issued statement.

The Air District states that the rules are expected to lead to very significant reductions in toxic emissions at the Lehigh facility, such as a 93 percent reduction in mercury emissions, 90 percent reduction in benzene and a 70 percent drop in hydrochloric acid.

Lehigh is also arguing that the new regulation essentially modifies the plant's operating permit and as much, permit modifications require a public hearing before an Air District hearing board. The company said it did not receive such a hearing.

Lehigh has continually been working on meeting the federal standards for the past couple years. Since 2010, the cement facility has installed an activated carbon injection system to curb mercury emissions as well as a hydrated lime injection system, which reduces visible emissions from the facility.

For more information about the reclamation plan and other issues related to Lehigh Cement, visit sccgov.org/ portal/site/planning.